AG2001/8230, Transcript of Proceedings [2002] AIRCTrans 343 (7 February 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

AG2001/8230

DETERMINATION OF DESIGNATED AWARD
FOR CERTIFIED AGREEMENT

Application under section 170XF of the
Act by Ansett Worldwide (Operations) Pty
Limited for determination of an award

SYDNEY

11.57 AM, WEDNESDAY, 23 JANUARY 2002

Adjourned sine die

PN1

THE COMMISSIONER: Could I have the appearances, please?

PN2

MR McARDLE: Commissioner, are we dealing with the appropriate award?

PN3

THE COMMISSIONER: We're dealing with the XF application.

PN4

MR C. McARDLE: I appear for Ansett Worldwide (Operations) Pty Limited.

PN5

THE COMMISSIONER: Yes, what do you wish to say?

PN6

MR McARDLE: Commissioner, if I could just explain for the record, although it's probably well known within the industry, in spite of the name, Ansett has nothing to do with dare I say, Ansett. It was an aeroplane leasing company that was owned by the now deceased Ansett Transport Industries and was sold in its entirety about six or seven years ago. So it's an independent company. It's got absolutely nothing to do with the current difficulties facing that former enterprise and will have no relationship with any restarted company bearing the Ansett logo.

PN7

The business is not conducting day to day airline public transport traffic. The business is leasing aeroplanes and it's leased as dry leases. That means you just rent someone a plane. Damp leases, you rent someone a plane with pilots or wet leases where you lease the entirety of the crewing, including but not always engineers. So the purpose of the exercise this morning will be to make possible wet leasing of aircraft with cabin crews which is being done. We want to regulate prescription within Australia. For the last half a decade or so, this company has been very active in precisely that but never before in Australia so this is this company back home on an operational basis.

PN8

Now, as the award we put forward as the appropriate award for measurement, Commissioner, we used the Impulse Award. We had a choice of using that one or the Virgin Award. The differences are Virgin is a company involved in public transport fulfilling schedules with an entire network. Impulse is almost that. It is now a company which wet leases aeroplanes to Qantas so although there's a vast similarity between both Impulse and Virgin in terms of what they pay their crews, for the purpose of this application, we believe that the Impulse agreement is the appropriate one.

PN9

Now, I have a minor spreadsheet which shows what the conditions that apply to Impulse and the conditions that apply to Virgin and the proposed conditions that will apply to Ansett. It's probably of greater use in the application that we're going to do next but it covers hours of work. In Impulse, it's about 125 hours a month up to a ceiling of about 140, Virgin 125 hours a month, a ceiling of 140. Ansett, it's probably not going to be more than 120. Gross salary for just a straight up flight attendant, it's about $35,000 for Impulse, including allowances. For Virgin, the same, about $35,000 a year, including allowances.

PN10

Ansett, $30,000 a year with a $3 an hour allowance and that comes out to about $36,000 a year, 36,700 or something like that. Sick leave, eight days Impulse, eight days Virgin, up to a maximum of 15 depending on periods of service for both of them. Ansett will be one day per month with no limit whatsoever on accrual. Accident insurance, well, it doesn't apply to Impulse or Virgin. There's going to be accident insurance here. One dissimilarity is in both Impulse and Virgin, flight attendants are expected to clean aircraft. Although our aircraft are cleaned, flight attendants are not supposed to attend to that.

PN11

So I'll hand up that spreadsheet just as an indicator, Commissioner, that there is an appropriateness in using both Impulse and Virgin but it is probably on balance tipped more in favour of Impulse because of this wet leasing arrangement that Impulse have.

PN12

THE COMMISSIONER: I'll mark that exhibit AW1.

EXHIBIT #AW1 SPREADSHEET

PN13

THE COMMISSIONER: When you said they've come home, they used to do it more as an international -

PN14

MR McARDLE: Well, it's an Australian company..

PN15

THE COMMISSIONER: But they used to provide these services to overseas companies like Pacific Airlines?

PN16

MR McARDLE: They do. For instance, Alitalia, say and they employ persons who were Alitalia uniforms but they are not Australians and there's no Australian prescription there but at the moment, it's probably in start up phase. We've got, as you might note from the paperwork, there's about three people employed at the moment in Australia paying Australian tax and there's a wet leasing arrangement in New Zealand using this Australian supervisory staff for now.

PN17

The anticipation if all goes well commercially, no promises obviously, is that that will be greatly expanded but it has already commenced and those people are now simply covered by common law contracts. This is a wish to regulate their service.

PN18

THE COMMISSIONER: I don't know if you're going to address me but one thing that concerns me or is an issue, the Impulse agreement is not an award. Doesn't XF require that?

PN19

MR McARDLE: I don't have the document in front of me. One of them is an award and one of them is an agreement, I think which is probably why we have a fall back on Virgin. The difficulty would be, Commissioner, if it's not going to be the Impulse, it needs to be the Virgin. The reason being that if it's not that, then it would have to be something like a transport award or something like that. There's no synergy with say a full on trunk route award such as the Qantas Short Haul Award or something like that because there's an entirely different dynamic completely. This is a company that leases aircraft, here, there, with this company, with that company, etcetera.

PN20

THE COMMISSIONER: It provides aircraft you mean?

PN21

MR McARDLE: Yes, provides aircraft. So it would be inappropriate to use something like a main line award say. So if the difficulty is that Impulse is an agreement, then it should be Virgin which is probably the fall back because that's an award.

PN22

THE COMMISSIONER: But does Virgin provide the same -

PN23

MR McARDLE: No, that was the reason, it's not preferable. Virgin has a public transport carriers licence and provides a scheduled air service using - - -

PN24

THE COMMISSIONER: Yes, well, why would we pick Virgin in lieu of Qantas?

PN25

MR McARDLE: Because of the nature of the enterprise, the history, the synergy between the two companies etcetera. It would be unsatisfactory. The next fall back to that is either a generic hospitality award or transport award.

PN26

THE COMMISSIONER: I have not extracted that agreement but you've called it an agreement and I've looked at XF and it talks about an award. It can be a state award but it doesn't seem to extend to being a certified agreement of any kind.

PN27

MR McARDLE: Can I just have a moment, Commissioner?

PN28

THE COMMISSIONER: Yes.

PN29

MR McARDLE: I'm just trying to pick up whether or not there's a definition issue that might get us over the hump.

PN30

THE COMMISSIONER: There's a definition earlier in X but I don't think -

PN31

MR McARDLE: I'm just wondering if it might have been possible to expand the word "award" to mean the word "agreement" according to one of these definitions, but it doesn't appear to. Well, if it's necessary then, Commissioner, we'll have to make an application for an appropriate award.

PN32

THE COMMISSIONER: If I thought that it was clear cut that it would be Virgin, then I would probably entertain an alteration to the application here and now but I'm not 100 per cent satisfied.

PN33

MR McARDLE: Commissioner, probably one way of resolving this is probably to stand down in the list. I can go and have a look at the relevant file for Impulse and just glean from that the appropriate award they used.

PN34

THE COMMISSIONER: Yes, I was thinking the same thing.

PN35

MR McARDLE: They would have had to have used an appropriate award. So if we could stand down in the list for 10 minutes or so, I'll go down to the registry and just determine what that award was.

PN36

THE COMMISSIONER: Do you think it can be done in that short time?

PN37

MR McARDLE: Yes, fairly certain.

PN38

THE COMMISSIONER: It's likely that that file is in Melbourne. If the matter doesn't proceed today and on the basis of that discovery, you make a new application. I don't think the matter will take many days to be relisted. So I'm not saying if we adjourn today, well, you won't see me then for a month or anything. We can certainly do it quite quickly but I just want to, given the circumstances, I think it's important for this airline or this group of people to be on a proper footing, for the agreement to be put on a proper footing rather than a quick addressing of an -

PN39

MR McARDLE: One of the difficulties is Mrs Curtis who is with me representing the employees today has to be back in New Zealand on the normal roster tomorrow. Perhaps if we could revisit this later today, Commissioner. If I could get the information, that would resolve the problem. Perhaps if you stood it down to not before some particular time, say not before -

PN40

THE COMMISSIONER: We could relist it at 3 o'clock.

PN41

MR McARDLE: Yes, if we come back at 3 o'clock, we might solve the problem quite quickly.

PN42

THE COMMISSIONER: Well, these proceedings are now adjourned till 3pm.

SHORT ADJOURNMENT [12.14pm]

RESUMES [3.05pm]

PN43

THE COMMISSIONER: Yes, Mr McArdle?

PN44

MR McARDLE: Yes, Commissioner, I think we've been able to make good use of the time that you granted us. I contacted the lawyer for Impulse, Mr David Morris, and he advised me that the Impulse agreement had used the National Jet Systems Award and I'd like to place on the record my appreciation for the assistance given to me by registry staff in this. I was able to obtain through the archives officer in the Melbourne registry, the National Jet Systems Award and that's print number MO850 and NO333 are the code words. Now, this is an award made pursuant to the award simplification provisions on 10 August 1999.

PN45

As an effective industrial instrument, it's out of date because it was superseded by the National Jet Systems Flight Attendants Agreement but it is the underpinning award of the Flight Attendants Agreement. Now, it has the advantage of being an appropriate award in this because it fits the niche that I explained to the Commission when we were in session previously. National Jet Systems is an airline contractor and it has a number of contracts but its principal contract is to run a system called Airlink, I think, which runs a couple of trunk routes for Qantas from Adelaide-Brisbane, Adelaide-Alice Springs, sort of semi minor trunk routes but it's a contractor to Qantas as well as doing other work.

PN46

The sort of work we would have in mind would be that sort of work and the sort of work that is now currently done. For instance, the amount of work we do have in Australia is of that nature, some elementary off shore work with New Zealand etcetera. So it's an appropriate award. So my application, Commissioner, is for the underpinning award mentioned in the application to be varied to be the National Jet Systems Proprietary Limited Airline Division Flight Attendants Award 1999.

PN47

THE COMMISSIONER: Mr McArdle, my associate obtained a copy of the award. It was the underpinning award for the Virgin agreement, that is the National Jet Systems Flight Attendants Award '99 was the underpinning award for the certified agreement that is to apply or was to apply to Virgin Airlines. So it might be that Virgin Airlines also, which you referred to earlier, is also only a certified agreement, not an award, but significantly, that underpinning award which was determined by me in September 2000, that was an application by the Flight Attendants Association of Australia.

PN48

Are you aware, at least on your documentation of whether the Flight Attendants Association of Australia were parties to the Impulse agreement or was that an LK?

PN49

MR McARDLE: The Flights Attendants Association is a party to it.

PN50

THE COMMISSIONER: Yes. So we can presume without the documentation in front of us that - have you got the National Jet Systems Award?

PN51

MR McARDLE: Yes.

PN52

THE COMMISSIONER: But have you actually got the order, the determination?

PN53

MR McARDLE: That makes it a designated award? No, I'm simply relying on being informed of that by Commission staff.

PN54

THE COMMISSIONER: Yes, that's fair enough but it seems to me that given that the FAA see it that way, they are an employee association and they would have experience in the wide differences between what Ansett does, what you do, what National Jet do and what Virgin and Impulse do or did and they think National Jet is a fair underpinning. That's certainly a relevant consideration as well as what you've put to me.

PN55

The other thing is, does the employee here, Ansett Worldwide, does it operate only one sort of aircraft or several?

PN56

MR McARDLE: No, it's got seven sixes. I hope I remember the numbers, Commissioner, 76, 73, 75.

PN57

THE COMMISSIONER: Anyway, your application is that the - - -

PN58

MR McARDLE: That the National Jet Systems Proprietary Limited Airline Division Flight Attendants Award 1999 be the underpinning award.

PN59

THE COMMISSIONER: Yes, thank you, Mr McArdle. This is an application for the Commission to determine whether a certain award, the Impulse Airlines etcetera Enterprise Agreement should have been an underpinning award or a relevant award for the purpose of the no disadvantage test. On further examination, the applicant is seeking that the no disadvantage test be measured against what it regards now as the appropriate or relevant award and that is the National Jet Systems Proprietary Limited Airline Division Flight Attendants Award 1999.

PN60

In the circumstances, the Commission agrees with that and a formal determination in that respect will issue shortly. On that basis, these proceedings are now adjourned.

ADJOURNED INDEFINITELY [3.15pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AW1 SPREADSHEET PN13